View of the Admiral Jurisdiction, Preface
THE INTRODUCTION, OR, Preface TO THE Enſuing TREATISE.
THE Syſteme of Juriſdictions is, as the Law it ſelf, above the Notions of any Private Conception; he is ſomething more then of a ſingular Invention, that thinks he can arraign the Verdict of all Ages, Nihil dici queat quod non priue dictum fuit; And he is more then of Terent. in Prolog. Enuchi.an audacious ſpirit, that dares invade the Laws Prerogative, Nihil proferri debet, quod non prius Conſtitutum fuit. Hence it is, that he that writes of that Subject without Book, that is, that vents his own Notions, or ſails by the weather-cock of his own Brain, not only conſiſcates the ill-ſtowed Cargo of his Intellect, but alſo renders himſelf no leſs arrogant and preſumptuous in the tacite apprehenſions of the Prudent, then ſhallow and ridiculous to the moſt rural Capacities. It is therefore nothing diſhonourable for Treatiſes of this Nature to merit the Application of that Liberty which Chryſippus took, of whom it is ſaid, That he borrowed ſo freely from Authours, that if his name were but expunged or obliterated out of the Title Page, there would nothing remain that could properly be called his own; It is neither heretical nor diſingenious to accommodate old Truths to new Deſigns, ſo it be done aptly and honeſtly & ſine animo furandi: for there is that Credit by way of debt due to the Authours, that it is no leſs then Theft to conceal them, whereas one half of the debt is paid, if you duly quote them; yea, they become your Debtours, if by the ingenuity of your Husbandry you raiſe their Credit according to the improved value; But he that conceals the Patrons of his Aſſertions, is aſhamed of his own Craft, robs the Dead, and ch…ats the Living. He that writes Politicks without prefixing his Principles, comes ſhort of his Duty; But he that writes Law without quoting his Authority, preſumes beyond his Line; he that bluſhes to be ingenious, is aſhamed of his own modeſty; Plato borrowed many things from Pythagoras; Ariſtotle from Plato, and Theophraſtus from Ariſtotle; This Treatiſe hath borrowed nothing but what it intends to pay, here's the acknowledgement of the debt, full ſatisfaction with intereſt may be expected elſewhere, ſufficient Caution being given in the ſubſequent Elenchus of the Creditours.
As Reaſon is the ſoul of the Law, ſo Juriſdictions may be ſtyled the faculties of that ſoul, being reduced to act or exerciſe as they are accommodated to this or that object; Conſequently therefore to confound Juriſdictions, is to obliquitate the Rule of all Humane actions, ſpecially if any thing leſs then Bonum Publ…cum, under a vizor be the Authour of that confuſion. Mine and Thine divide the world betwixt them; in Private tranſactions they are unhappy Monoſyllables, but in Publick affairs they may be of moſt dangerous Conſequence; Inſomuch that Seneca ſaid, The world would be quiet were it not for thoſe two ambitious Pronouns. aSenec. lib. de Morib.This Meum & Tuum is here underſtood Collective, for Juriſdictio being of Publick right is not competible with any Private intereſt excluſive to common good, bL. 1. l. eſt receptum. ff. de Juriſd. om. Jud. & l. privatorum. Cod. de Juriſd.that being beſide the deſign of Jus Gentium, whereby Juriſdictions were Originally conſtituted. cNatta. Conſ. 639. nu. 2. & 99. & Joach. Steph. de Juriſd. c. 1. nu. 19.The flux and reflux of Juriſdictions are from and to the Prince as Rivers from and to the Ocean, wherein Tranſactions of the greateſt weight and burden are Navigable; And therefore to obſtruct the Current of Juſtice in this or that Channel, may force open the Sluces of the Law to a Cataclyſme of Injuſtice, and diſſolve the Ligaments of the beſt jointed Body Politick in the whole world; And yet if the ſtreams of one Juriſdiction, running too rapid, over-flow its banks to the inundation of another, it's moſt juſt and ſafe, ſeaſonably to reduce them to their proper Channels. Were it true what Bald. ſays, dBald. Conſ. 333. lib. 1.Juriſdictiones penes Principes reſidere quaſi Scabellum, the Claſhing of Juriſdictions might be an offence only to the Footſtool of Majeſty; but if Juriſdictio ejus oſſibus inhaeret, as Tapia and others aſſert, eCar. Tap. in ff. de Conſt. Prin. cap. 4. nu. 14. & Marant. Diſtinct. nu. 3.then it may be of an higher nature.
Where divers perſons are concredited with Juridical Truſt or Authority, there the Juriſdiction is either Separate, or Concurrent, or in Common. A Separate Juriſdiction may appertain to a certain number of perſons privative or excluſive to all others, whereby they are externally qualified to take Cognizance either of other Perſons, fL. 6. Cod. de Juriſdict.or of other Cauſes, gL. ult. Cod. ibid.or of other Quantities, hL. 11. cum ſeq. de Juriſd.or of other Places, iAlex. tot. tit. de Offic. Juridic.then what other Judges are Juridically qualified for. A Concurrent Juriſdiction is that which appertaineth to many Cumulative, as when the ſame Caſes are equally ſubjected to the Cognizance of many Judges: yet ſo that each of them, whether one or more, by himſelf or themſelves, may in ſolidum hear and determine the Caſe, and he or they only may take Cognizance thereof to whom addreſs L. penult. ff. de pet…t. haeredit. & l. 1. Cod. ubi de Crim …gi. oport.by the Complainant is firſt made, and before whom the Suit is firſt Commenced, for in ſuch Caſes prevention takes place; and in all Competent Juriſdictions wherever the Action is firſt Commenced, there Judgement ought to be given in the Caſe. lL. 3. ubi coeptum. ff. de Judic.Thus the Emperial Chamber by an Ordinance there made hath Concurrent Juriſdiction with the Emperour himſelf, mGail. l. 1. obſ. 29. nu. 3. & obſ. 42. nu. 3.ſave in matters relating to the Fee or Inheritance of the Emperial Crown. A Juriſdiction in common appertaineth to many, and that cumulative, as to all of them, ſo to all of them together, and complexive; inſomuch that one of them may not proceed without the other, the Law obliging all of them to be preſent together in Judgement. nL. tune autem. 37. ff. de re judic.But whatever Juriſdictions there are in a Nation, of how many kinds, degrees, orders, or ſubordinations ſoever, This is a ſure Rule and without Exception, Juriſdictiones non ſunt confundendae; oL. nemo. Cod. de Juriſd. om. Jud.The Bonum Publicum is more Rationally ſtated, and more concerned in rhe equal adminiſtration of Juſtice, then to admit the leaſt Confuſion in that which is the only Expedient to prevent Confuſion; for Juſtice (whoſe office it is not only to doe that which is equal, but alſo to remove that which is unequal) is never illuſtrable through any Mediums that hath the leaſt tincture of Injuſtice; and although for its material Object, it ever hath ſome one External action or other, as ſuppoſe Equality between Payment and Debt, yet for its Formal Object it ever hath Honeſty and Conformity unto, at leaſt an adequate Conſiſtency with Natural reaſon, compriſed in that external Act.
Of all Juriſdictions, That of the Admiralty or Sea-Affairs hath been the leaſt beholding to the Auxiliaries of the Preſs in defence of its Ancient Rights and Priviledges againſt ſuch as would without offence impair the ſame; The Reaſon probably may be either from the paucity of ſuch, as are more ſpecially therein concerned, in reſpect of that numerous Hoſt or Retinue, that in fealty to the other Juriſdictions are moſt prompt Notaries on all occaſions; o… rather in that it is of that excellent uſe in all Maritime Dominions, that the Friends thereof are well aſſured, its worth would be better valued, if the want thereof were more ſmartly felt. The Enſuing Treatiſe is to aſſert the Rights thereof in part, the deſign of whoſe higheſt Ambition being only rather to excite others by this hint to ſupply the defects hereof by a more full and clear illuſtration of the Rights and Priviledges of ſo Ancient and Neceſſary a Juriſdiction, then to convince any by Arguments leſs perſwaſive then that Intereſt whereon ſome me…s Prejudice may be founded. Though Merchants and Mariners qua tales be not ſuch able Lawyers as to know how their Maritime Caſes ſhould be determined according to the exact Rule of Law, yet they are ſuch able Supports to any Nation or Kingdome, that they are not to be left ſub incerto, where or in what Tribunal to find that Rule under ſuch a quality of Juridical Competency, as not to run hazards by Land as well as by Sea; yet this under the Notion of a Maritime Cauſe, when poſſibly it is of another Element, may not be ſtrain'd in favour of one Juriſdiction in derogation of another; nor under the notion of Merchants, when poſibly they are at beſt but quaſi Mercatores; For not every one that buyes and ſells, is thence preſently to be denominated a Merchant, but he only who in the way of Trade and Negotiation deals in Moveables for gain or profit, upon deſign of diſpoſing thereof in the way of Commerce either by Importation, Exportation, or otherwiſe, in the way of Emption, Vendition, Barter, Permutation or Exchange. pL. Unic. Cod. de Nund. & Alceat, in L. Mercis 66. & l. Mercis 207. de Verb. Signif.So that he is not properly ſaid to be a Merchant, who once and no more doth buy Commodities that he may ſell the ſame, for it is not one Act that doth denominate a Merchant, qAccurſ. & alii in l. 1. §. Mercis. ſt. de Trib.but a certain Aſſidutiy or frequent Negotiation in the Myſtery of Merchandizing, unleſs he be matriculated or entred as ſuch in the Society or Corporation of Merchants. He alſo may be ſaid to be a Merchant, who by common fame and in the opinion of men is commonly reputed a Merchant. rBart. in Rub. Cod. de Navic.They that buy Wares or Merchandizes to reduce them by their own Art or Induſtry into other forms then formerly they were of, are reputed rather Artificers then Merchants; sC. ejiciens 88. diſt.unleſs by their order they are ſo transformed by the art and induſtry of others upon deſign of ſelling the ſame to gain thereby, in which caſe they may be ſaid to be rather Merchants then Craftsmen or Artificers. And ſuch as buy wares for preſent money, that without altering the form thereof they may ſell the ſame at a future day of payment at a far dearer price then they were bought, are reputed rather Uſurers then Merchants. tC. in civitate. &c. conſuluit. Extra. de Uſu.But Bankers, Money-changers, and ſuch as deal by way of Exchange are reputed under the notion of Merchants. uPaul. de Caſtr. in L. in eum. ff. de Inſtit.For whereas it is formerly ſaid that a Merchant deals only in Moveables, underſtand that Money is compriſed under that notion. wL. moventium, ff. de Verb. Sign.So alſo are Ships.
The Iſle of Rhodes anciently was the only Mart of Trade and Commerce in the whole world; Antiquity deſcribes that Iſle and the City thereof as the only Metropolis of Merchants; who, though they have a Latitude as wide as the Ocean in point of Trade and Negotiation, yet they may not in time of war tranſport Prohibited Goods or Commodities to an Enemy, though deſigned for the Redemption of Captives. xC. Significavit. Extra. de Judaeis, ubi Abbas.Yet ſuch is the Reputation of Merchants, that Credit is generally given, without the leaſt diſtruſt, unto their Count-Books, unleſs ſome Legal Exception may be raiſed againſt the ſame, or other juſt cauſe of ſuſpicion. yDecii Confil. 40. nu. 3. & Conſil. 496 nu. 9.And whereas each Merchant hath his peculiar Mark wherewith his Goods are uſually marked, by way of diſcrimination from the z] Bald. in Auth. Dos data. Cod. de Donat. ant. Nupt.goods of other men, the Law in favour of ſo laudable a Cuſtome doth preſume the goods to be his, whoſe mark is thereon affixed; Not that ſuch marks, abſtracted from other Concurrent Evidence, do of themſelves amount to a full proof; only they induce ſuch a Preſumption, as doth (without ſtronger evidence or preſumption on the other ſide more energetical) carry the poſſeſſion for him whoſe marks they are; Nor is it therefore leſs hazardous then unlawful for one Merchant to make uſe of anothers mark, ſave when in time of war they ſtrain a point to drive a Colourable Trade, which, with other the like ſtratagems, the Law will interpret no other then Solertia or Dolus bonus rather then Trade ſhall be totally obſtructed, or the Merchants quite diſcouraged; and where the goods controverted happen to have the marks of both the parties litigant, in that caſe his is the beſt Condition who hath the Poſſeſſion, till by the other party better Cards can be ſhewed for the Property; a§. Commodum. Inſtit. de Interdict.for a Preſumption grounded only upon the marks muſt ever give place to a Proof of the Title or Property grounded upon an Emption, Permutation, or the like. bL. intra. §. vendentibus. ff. de Minor.Nor may the Plaintiff pendente lite, make uſe of that mark touching which the Diſpute or Controverſie is, till there be a Deciſion in the Caſe.cBald. in L. 1. Cod. Ut nemin. Liceat ſine Jud. autoritat.
The Intereſt of the Merchant mainly depending on the Mariners, it concerns him to know wherein their Duty conſiſts; a right underſtanding whereof is not with more facility attainable then by a due perpenſion of thoſe things which the Law it ſelf aſcribes as faults to Mariners; ſuch in part as theſe; viz. The Mariner may not ſet ſail The Skipper or Maſter is a Mariner, though no common Mariner.when under an Embargo or other reſtraint of Princes; nor in Tempeſtuous weather; nor after the time limited by Contract; he may not during his Voyage in reference to Ship or Lading, doe ought miſ-becoming an honeſt, able, skilful, and prudent Mariner; he may not ſtay in Port or Harbour without cauſe when a fair wind invites his departure; he may not deviate in his Courſe without juſt cauſe, or ſteer a dangerous or unuſual way when he may have a more ſecure paſſage, yet to avoid illegal Impoſitions, he may ſomewhat change his Courſe and be excuſable; dL. cum in debito. ff. de Probat.he may not unlade his Merchants Goods into another Veſſel worſe then his own; he may not lade any Goods into a leaky or inſufficient Veſſel; he may not over-charge or over-lade his Ship, nor ſtowe Goods above her birth-mark; he may not ſail without able and ſufficient Mariners, both for quality and number; he may not voluntarily ſail by places infeſted with Pirats, Enemies, or other places notoriouſly known to be unſafe: he may not tranſport perſons of an obſcure and unknown Condition, without Letters of ſafe Conduct, or other ſuſpected perſons, to the rendring Ship or Lading liable or ſubject to a ſeizure or ſurreption; he may not lade any Prohibited or unlawful goods, whereby the whole Cargo may be in danger of Confiſcation; he may not uſe any unlawful Colours, Enſigns, or Flags, whereby his Ship or Lading may incur a ſeizure; *L. …. Cod. de Navib. non Excuſand.he may not, being haled at Sea, behave himſelf otherwiſe then becomes a Prudent Maſter; he may not carry counterfeit Cocquets or other Fictitious and Colourable Ship-papers to involve the Goods of the Innocent with the Nocent; he may not with his Veſſel engage among the Rocks, being thereto not neceſſitated by the violence of wind and weather, nor by night deceived or deluded by falſe Lights; he may not refuſe payment of the juſt and ordinary Duties, Port-charges, Cuſtomes, and Impoſts, to the hazarding of any part of his Lading; he may not ſail with inſufficient Rigging, or Tackle, or with other or fewer Cables and Anchors then is requiſite, reſpect being had to the Burthen of the Veſſel; he may not ſail with other Ship-proviſions then what is good and wholeſome, and ſufficient for the Voyage; he may not neglect the well moaring of his Veſſel in Port; he may not ſail without one Cat or more in his Veſſel; he may not ſuffer the Lading to take wet, to be ſtoln or embeziled; he may not permit Debates or Conteſts among his Mariners, to the prejudice of the Merchants Goods; he may not let open the hatches of the ſhip, to endanger the Lading; he may not prejudice any part of the Lading by any indiſcreet or unskilful ſtowing of the Goods, reſpect being had to quantity, nature, and quality thereof; he may not take up more money upon Bomeree or the Groſs Adventure then his Intereſt is in ſhip or Lading; he may not contrary to Order touch at Ports, not neceſſitated thereunto by contrary winds or otherwiſe. Many other are the faults and miſcarriages incident to Mariners; theſe only by way of hint to Merchants, who are the greateſt ſufferers hereby, having herein very ſeldome equivalent reparation, the offendors for the moſt part not ſufficiently ſolvant.
But here note, that he that will charge a Mariner with a fault in reference to his Duty, muſt not think that a general Charge is ſufficient in Law, but he ought to aſſign and ſpecifie the very fault wherewith he is ſo charged. eL. Praetor …it, in prin. ff. de Injur.In like manner he that will infer ſuch or ſuch a ſad diſaſter to have happened or been occaſioned by reaſon of ſome fault in the Mariners, muſt not only prove the fault it ſelf, but muſt alſo prove that that fault did diſpoſe to ſuch a ſad event, or that ſuch a misfortune could not have happened without ſuch a fault precedent; fL. non omne, ff. de Stat. Libe. & l. is, ff. de Act. & Oblig.wherein the Mariners though legally qualified as good and competent witneſſes for acts done a ſhip-board, gL. Conſenſu. Cod. de r…yet to exculpate and excuſe themſelves, they are not witneſſes without exception, ſave in certain Caſes wherein the Law allows them a toleration by way of Juramental purgation; And in caſe of loſs or damage to the Lading or any part thereof by reaſon of ſuch diſaſter occaſioned by or in conſequence of ſuch fault of the Mariners, the Merchant hath his election in Law, whether he will ſue the Maſter or the Owners of the Veſſel, hL. 1. §. igitur, ff. de Exerc.only he can recover but of one of them; And having once determined his election, he ought to ſtick to that; In which caſe if the Maſter happen to be Judicially condemned by reaſon of any default in his Mariners, he may detain their wages till payment be made, and ſatisfaction given for ſuch damage as he ſuffered by their neglect; for they ought by the Law to refund it out of their wages.iAret. poſt Joan. Fab. in §. item Exercitor, nu. 3. Inſtit. de Oblig. quae ex quaſi Delict.
Ships and other Veſſels of that kind were Originally invented for uſe and profit, not for pleaſure and delight; to plow the Seas, not to lie by the walls; therefore upon any probable deſign the major part of Part-Owners may, even againſt the conſent, though not without the privity and knowledge of the minor part, ſet a Veſſel to Sea, under ſuch Proviſions, Limitations, and Cautions, as by the Law is in that behalf provided; yea, the ſame thing may be alſo effected by the one party only, in caſe of equality in Partnerſhip. kBart. & Paul. in l. haec diſtinctio. §. cum fundum, ff. Locat.But in the choice of a Maſter, where there are ſeveral Part-Owners of the ſame Veſſel, not always he that is choſen by the major part, but he that is beſt qualified for that employment, is according to Law moſt eligible and to be preferred. lL. non inter, ff. de uſu & habi.If a ſhip be ript up or taken abroad into pieces, with deſign of converting the Materials thereof to ſome other uſe, and it be afterwards upon other advice or change of mind re-built with the ſame Materials, This is now another and not the ſame ſhip, mL. inter ſtipulantem, in §. Sacram. ff. de Ver. Oblig. & in l. quod in §. fin. ff. de Leg. & in l. qui res, §. aream, ff. de Solut. & in l. quid tamen, in §. in Navis. ff. Quib. mod. Uſufr. ami….ſpecially if the keel be ript up or changed, and the whole ſhip be at once all taken aſunder and re-built; It is otherwiſe if it be ript up in parts or taken aſunder in parts, and ſo repair'd in parts; In which Caſe it remains ſtill the ſame ſhip, and not another, albeit it be ſo often repaired, that in tract of time there remain not one chip of the Original Fabrick. And although a man repair his ſhip with plank or other materials belonging to another, yet the ſhip ſhall not be his to whom the materials belong, but remains his who repaired it. nL. Mutius, ff. de rei vendic.It is otherwiſe if one takes another man's planks or materials prepared for the uſe of ſhipping, and therewith build a Veſſel; for in that caſe the Owner of the materials ſhall be Owner alſo of the ſhip, for the property of the whole Veſſel follows the Keel thereof. off. lib. 6. tit. 1. Leg. 61.But if one prepare Tables and other Implements, as for the uſe of a dwelling houſe, or the like, with Oke or Deal belonging to another man, and afterwards with thoſe Implements build a ſhip or other Veſſel, in this caſe the ſhip is his who built the ſame. pL. ſi ex meis, ff. de acq. rer. dom. & l. ſi convenerit, §. ſi quis ſic, ff. de pign. act.If a ſhip be bought, together with all her Tackle, Apparel and Furniture, and other Inſtruments thereto belonging, in this caſe and by theſe words the ſhips boat is not conveyed. qL. fin. ff. de fund. inſtruct. & l. Scapham, ff. de evict. & l. Marcellus, in §. armamenta, ff. de Rei Vendicat.And therefore if by reaſon of any offence the ſhip happen to be forfeited or confiſcate, the ſaid ſhips boat is not confiſcate. rBald. in L. cum proponus. Cod. de Nautic. ſoenore. nu. 6.If one doth ſell that ſhip or Veſſel, wherewith he hath exerciſed the deteſtable acts of Piracy, whether the parties that ſuffered loſs by ſuch depredations, have any remedy in Law againſt ſuch ſhip now bought bona fide, or againſt the buyer thereof now bonae fidei poſſeſſor, is a queſtion much controverted; Some are of opinion that he hath no remedy in Law, becauſe the ſhip is a ſenſeleſs thing, and not capable of offending. sL. 1. ff. ſi quo ad. pau. fe. di.As alſo, becauſe the buyer thereof (ſuppoſing him not conſcious of any ſuch depredations, nor privy to, abettor or partaker thereof) ought not to ſuffer being innocent; tJaſ. in conſil. 170. Nomine Magnifici, &c. Vol. 2.Others are of another opinion, for that it is lawful for every man to ſeize the goods of Pirats, uBald. Paul. & Sal. in l. autem navigiae. Cod. de furt.eſpecially for that there lies a tacite obligation on the goods of all offendors for ſatisfaction; wBal. in l. furt. Cod. de furt.whence ſome infer that the Merchants who are ſo deſpoyled of their goods, have a Legal recourſe for ſatisfaction on the Pirats goods whereſoever or in whoſe hands ſoever they find them. But the more received opinion is, that whereas it is held lawful for every man to apprehend the goods of Pirats and be blameleſs, it is meant and intended only ſo long or whileſt they are the goods of ſuch Pirates; xL. in delictis. §. Si extraneus. ff. de Noxa. & Angel. in l. Sive manifeſtus, in §. tam diu, ff. de Com. fur.unleſs you can alſo affect the poſſeſſors of ſuch goods with a participation of the ſame crime. And if any do bona fide, either buy or redeem a ſhip or other goods from ſuch Pirats, he may upon reſtitution thereof to the true Proprietor recover of him the price of ſuch emption or the redemption-money. yL. mulier. ff. de Captiv.If a ſhip or other Veſſel by ſtreſs of weather or through fear of Enemies or Pirats, be forced or chaſed into a Port, no Duties or Cuſtomes or other duties in that caſe ought to be exacted or paid.zL. fin. §. ſi propter neceſſitatem. ff. de public. & l. Caeſar. ff. de Public.
In fraighting of ſhips, reſpect is had either to the ſhip it ſelf, or elſe to a certain part thereof; as alſo either by the MonethMonth, or the Voyage, or by the Tun; for it is one thing to fraight a ſhip, another thing to take Wearing Apparel and Victuals for the ſhips uſe, pays no fraight. ff. Naut. Caupo. ſtab. &c. l. 1. §. quamcunque rem.certain Tunnage to fraight; So alſo one thing to be the Cape-Merchant, another to be an Under-fraighter; and the Law of fraight ordinarily is regulated by the Contract, and varies according to the diverſities of Agreement, for Convention makes Law. If fraight be contracted for the Lading of certain Slaves, Cattle, or the like, and ſome of them happen to dye before the Veſſel arrives to her Port of diſcharge, the whole fraight is due, that is, as well for the dead as the living. aL. ſi quis. Cod. de Inſtit. & Subſtit.It is otherwiſe if the fraight were contracted for the Tranſporting them, in which caſe fraight is due for no more then are alive at the ſhips arrival to her Port of diſcharge, and no fraight due for the dead. bArg. l. Seio. ff. de annuis legatis. & l. illis libertis. in fin. ff de Condit. & demon. ar…. 7.If it be not known or liquid, whether the Contract were for the Lading or Tranſporting them, the fraight is due for the Lading, and conſequently as well for the dead as living. cL. qui operas. & l. ſi aedes. §. cum quidam. & §. fin. ff. locati.If fraight be contracted for tranſportation of a Woman, and ſhe happen during the voyage to be delivered of a child on Shipboard, no fraight is to be paid for the ſaid Infant. dL. Sed & addeſ. in §. Si quis mulierem. ff. Locat.If ſuch misfortune happen to a Ship in her voyage that ſhe cannot proceed therein, the fraight contracted for doth ceaſe in ſome caſes, only for ſo far and ſo much of the ſaid voyage as the ſaid Ship made before ſuch misfortune, fraight ſhall be paid. ePaul. in l. ſi uno. in §. cum quidam. & §. ubicun que ff. locat. & Sign. de Homod. Conſil. 195. nu. 6.If the ſhip by reaſon of the fraighters fault, as for Lading Prohibited Commodities, or the like, be detained or impeded, he ſhal pay the fraight contracted and agreed; fL. penult. §. novem. ff. Locat.The Lading of a Ship in conſtruction of Law is tacitly obliged for the fraight; yea, the payment of fraight is preferr'd before any other Debts to which the goods ſo laden are liable, albeit ſuch Debts in time were precedent to the ſaid Fraight. gBald. in L. certi juris. in 4. q. in verb. Quid ergo. Cod. Locat.If a ſet time be fixed and agreed between the Merchant and the Maſter, wherein to begin and finiſh a Voyage, it may not be altered by the Supra-Cargo without ſpecial Commiſſion ad hoc; nor may the Maſter ſail after the time Covenanted, without refunding the damage out of his owne purſe, in caſe any happen at Sea after the ſaid time. hL. Qui Romae. §. Callimachus. ff. de verb. Obl.A Promiſe being made by a Maſter of a Ship to to ſail Venice from the Port of London in two moneths, the promiſe is performed if he begin to ſail the ſaid Voyage within the two moneths, though he arrive not at Venice within the ſaid time. iAng. Alex. & Jaſon in dict. §. Callimachus.And the ſailing from one Port to another, thence to a third, fourth, &c. and ſo home to the Port whence ſhe firſt ſet ſayle, o… ſome other Port of her laſt diſcharge, is all but one and the ſame Voyage, kL. Relegati. ſt. de poenis. & l. ult. ff. de Sep. Viol.ſo as it be in Conformity to the Charter Party.
As there is no Art more Neceſſary, ſo none more dangerous and uncertain, then that of Navigation; inſomuch that Bias the Philoſopher (One of the ſeaven Grecian Sophies) had a Conceit that Navigators and Mariners, when under Sayle, might not properly be reputed either among the Living or the Dead; and Plutarch in the Life of Cato, relates it as one of Cato's Three Penitentials at his death, if ever he conveyed any thing by water when he might have done it by Land; hence it is that the Law is ſo favourable in Caſes of Wreck, and in nothing more conſults the reparation of any, then ſuch as by that deplorable Caſualty are reduced to miſery. Now no man by the Law may be prohibited or denyed the Liberty of Sayling either upon the Seas or any publick Rivers. lL. 2. §. Si quis in mari. ff. Ne quid in loc. publ. & §. & quidem. Inſt. de rerum. divi. & l. uni. ff. Ut in flum. pub. navigate licear.that is, no man may be denyed that freedome, or prohibited by any Private perſons, or other who have not Jura Regalia in that Territory, for ſome Princes and States have in all ages exerciſed that Prerogative in this point which no leſſer Powers can pretend unto; Witneſs the City of Peru, in her Conceſſions, and Interdictions or Prohibitions, touching a Liberty or reſtraint of Sayling on the Lake of Peru; as alſo the like by the Venetians as to the Adriatick Gulfe; mAngel. Conſil. 290. & Veronenſis.Not here omitting to make an honourable mention of that undoubted Soveraignty which the Kings of Great Brittain in all ages have had in the Seas thereof. nBelliſſime. Seld. de Mar. Clauſ.Another duty of Merchants and Mariners is Contribution, which is not onelyonly in the caſe of goods caſt over-board for the Lightning of the Veſſel, but alſo in Caſe of Redemption of ſhip or Lading, or any part thereof from Enemies or Pirates, off. ad Leg. Rhod. de jactu. l. 2. §. ſi Navis à Piratis.inſomuch that if a Maſter redeem the ſhip and Lading out of the hands of Pirates by promiſing them payment of a certain ſum of money, for performance whereof himſelf remaines as a pledge or Captive in the Cuſtody of the Pirates; in this caſe he is to be ranſomed or redeemed at the Coſts and charges of the ſaid Ship and Lading, ratably and proportionably as each mans Intereſt therein doth amount thereunto. pDict. §. ſi Navis à Piratis. & ibid. Juan. de Heuia lib. 3. p. 2. Cur. Philae. Naufragio. 13. nu. 18.And if there be Caſh or mony in the Ship; it is not in this caſe Exempt from paying its ſhare of the Contribution proportionably to Ship and Lading, becauſe the Maſter knowing the ſaid money to be a Ship-board, was probably the more willing to Redeem the Ship, though at a dearer rate. In a ſtorm, when the Ship is in danger of periſhing, it is not lawful for the Maſter at his own diſcretion, without advice firſt had with the Merchants or their Factors or Supracargoes, to caſt goods over-board for the Lightning the Veſſel, or to Cut down the Maſt, or the like; but in caſe they conſent not, and the Maſter ſee cauſe for it, he may even againſt their conſents do the ſame, by the advice of the major part of his Mariners, who at the end of their Voyage are to make oath, that they did the ſame out of Neceſſity, and only for preſervation of Ship and Lading, and by advice of the Mariners: And the Maſter in ſuch caſe is to take as much care as in him lies, that ſuch goods only be ejected and caſt over-board as are of the heavyeſt weight, and leaſt value; qLeg. Wisbicenſ. art. 20, 21, 38, 39.for which Contribution is to be made, wherein the ejected goods are to be valued as other of the ſame ſpecies are ſold for; And Jewels, though of no burthen to the Veſſel, yet in ſuch caſe are liable to pay their ſhare of Contribution according to their value; And in ſuch Caſes the Cuſtome of the Place is to be obſerved; for by the Cuſtome of ſome Places the Oaths of the Maſter and a Third part of the Mariners are required, by the Cuſtome of other Places the Maſters Oath with two or three of his Mariners doth ſuffice. But if only the Ship it ſelf, or any of her Tackle happen by ſtreſs of weather to be damnified, there is no Contribution for the ſame, though the Lading be all preſerved. rff. ad Leg. Rhod. l. 2. §. Si con…c…vatis. The perſons of m…n, wearing appa el, and the Ships proviſions are exempt from Contribution.Contribution is to be made and regulated in this manner; Firſt, the goods which are loſt or were ejected for conſervation of the reſt, are to be valued and appraiſed; then the goods ſaved are likewiſe to be eſtimated, that ſo the values of each being known, a proportionable valuation may be contributed by the goods ſaved, towards ſatisfaction for the goods ejected, loſt, or thrown over-board; wherein regard is to be had not to what might be got by the goods loſt, but what the damage is by the loſs thereof; which are to be eſtimated not ſo much by what they might poſſibly be ſold for, as by what they coſt or were bought for. Though in truth the more received practiſe and Cuſtome is, that the goods Some are of opinion that the goods ſaved are to be valued as they may be ſold for, but the goods loſt as they were bought.ſaved and loſt are both eſtimated as the ſaved goods happen to be ſold for, the fraight and other neceſſary charges being firſt deducted; and the Eſtimation or Computation is to be made by ſuch skilful Merchants and Mariners as adhere in their judgements and affections to neither party, farther then becomes indifferent Arbitrators; which may be managed with moſt equality and leaſt ſuſpicion or exception, if the appraiſment be made upon oath. And if any in the Ship hath Money, Plate, Jewels, or the like, in any Trunk, Cheſt, Pack, Fardel, or other thing now to be thrown over-board, he ought to diſcover it and ſhew it to the Maſter of the Ship before the ejection, or otherwiſe in caſting up the Contribution, theſe things will come no farther into conſideration, then what the bare Extrinſick value appeared to be. The goods Goods caſt overboard to lighten the ſhip makes no Der… lict, §. ult. Inſt. de Rer. Diviſ. & l. 9. §. ult. de acqrer. dom.preſerved are by Law as liable to pay Contribution as Fraight, and are tacitely obliged for the one as for the other, and the Maſter may retain them as a pledge in Law as well for the ſatisfaction of the one as of the other; If ſuch ejected goods or the Merchandize be afterwards recovered out of the Sea, the Contribution for them ceaſes, ſaving for ſo much as they are thereby deteriorated. sff. ibid. l. navis. §. cum autem.But if by reaſon of the Maſters over-lading the Veſſel, or by his indiſcreet ſtowing the Goods or the like, ſuch ejection or caſting goods over-board happen, in that caſe no Contribution to be made by the Merchants; but Satisfaction by the Ship, the Maſter, or Owners thereof. tLuſi Sernus. 27. §. & Si. 23. Ad Leg. Aquil.If to avoyd the danger of a Storm, the Maſter cut down the Maſts and Sayls, and they falling into the Sea are loſt; this dammage is to be made good by Ship and Lading pro rata; Not ſo in caſe the ſame had happened by the Violence of the Wind or Storm, or other Caſualties. Alſo no Contribution in caſe one Ship ſtrike againſt another, whereby dammage happens; but full ſatisfaction in caſe of a fault or miſcarriage in either, or an equal diviſion of the dammage in ca…e it happen by a meer Caſualty. Laſtly, If a Lighter, or Skiff, or the Ships Boat into which part of the Cargo is unladen for the the lightning of the Ship, periſh, and the Ship be preſerved, in that Caſe Contribution is to be made; Otherwiſe it is, in caſe the Ship periſh, and the Lighter, Skiff, or Ships Boat be preſerved; for no Contribution but where the Ship arrives in ſafety.vL. Navis. ff. Ad. Leg. Rhod. de jactu.
Within the Cogniſance of the Juriſdiction of the Admiralty, and wherein Merchants and Mariners are principally concerned, are alſo all cauſes of Reprizals, known to us by the Words Repriſaliae, or Letters of Marque, which in the Law have alſo other Appellations, as Pignoratio, Clarigatio, and Androlepſia; For it is ſuppoſed that thoſe Reprizals now commonly uſed, were firſt introduced in Imitation of that Androlepſia among the Greeks, with whom it was a certain Right in caſe of Murder, to apprehend and ſeize any three perſons whether Citizens Demoſthen. in orat. in Ariſtogit.or other of any ſuch place or City, into which the Murtherer had fled for ſhelter, making it his place of Reſidence; and ſuch perſons to keep in ſafe cuſtody, until upon demand the ſaid Murderer were delivered up to Juſtice; This was Androlepſia with the Greeks, which (as ſome ſuppoſe) gave an hint to other Nations for theſe Reprizals, which are now of practice more common then commendable. The word Clarigatio is more acceptable to expreſs Reprizals, then either Androlepſia or Pignoratio; fot Pignoratio is a word too Generall, and Androlepſia too Special, as being only by the Authority of ſuch as required the Revenge of Murder, and upon no other accompt then that. The word [Reprizals] is from the French, reprendre & repriſe, that is, to Retake, or to take again one thing for anorher; albeit this may not be by any Private Authority, but only by the Authority of that Prince whoſe ſubject the Injured perſon is, and only in caſe Juſtice be denyed or illegally delayed by that Prince whoſe ſubject the Offender is: For before any conceſſion of Letters of Reprizal or Marque, there ought to precede the Oath of the party Injured, or other ſufficient proof touching the pretended Injurie, the certain lo…s and damage thereby ſuſtained, the due proſecution for obtaining ſatisfaction in a Legal way, the denyal or protelation of Juſtice, the complaint thereof to his own Prince, Requiſion of Juſtice by him made to the ſupreme Magiſtrate where Juſtice in the ordinary courſe was denyed, perſiſtency ſtill in the denyal of Juſtice; all which precedent, Letrers of Reprizal (under ſuch Cautions, Reſtrictions, and Limitations as are conſonant to Law, and as the ſpecial Caſe may require) may iſſue by the Jus Gentium; for ſuch Law-Caſuiſts as queſtion whether Reprizals are Lawful, are in that point rather Divines then Lawyers; Grotius, who was both, reſolves it in the Affirmative; wGrot. de jur. Bel. lib. 3. cap. 2. nu. 2.wherein Nations as well as Perſons, the Jus Civile as well as the Jus Gentium agree the Legality thereof; whether you underſtand General and Univerſal Reprizals, which is quaſi Bellum Privatum, or Special and Particular Reprizals, which is quaſi Duellum Publicum.
The precedent Requiſites being duely obſerved, Reprizals may iſſue by the Authority of the Prince, in whom alone reſides the power as of making War and Peace, ſo alſo of granting Letters of Marque; And this notwithſtanding any Lawes to the Contrary that ſeem to inhibite the ſame; xNe alius pro alterius debito & paena teneatur. Auth. & omnino, Ne Uxor Marito C. l. providendum. de Decurio. li…. 19. c. titu. Ne fil. pro patre. Auth. imo. C. de acti. Cum Similib.But with reſpect to the National Treaties and Coventions, which in this point may at times vary and alter the Caſe in Conformitie to ſuch National Contracts. A due Adminiſtration of Juſtice is not the Leaſt ſenſe wherein Princes are ſtiled Gods; To deny or delay Juſtice is Injuſtice; Juſtice is every mans Right who hath not forfeited what he might claim by the Jus Gentium; therefore the Prince, within whoſe Territories Juſtice is denyed or delayed, is Accomptable to that other Prince whoſe Subjects ſuffer thereby; and by the Law Subjects may be puniſhed for their Prince's Omiſſions in what the Law of Nations requires. yC. Si Sententiae. c. 16. de Sent. Excom. in 6. Conſtir.And that Prince who unlawfully detained the Rights of a Subject under another Prince, or ſuffers it within his Territories to be detained, and in the Ordinary Courſe of Law denies Reſtitution, he may at length be compelled to Reſtitution, vi & manu militari.zL. qui reſtituere. De rei vindicat.
He that in the way of Reprizals apprehends at Sea another mans Goods, ought not to keep them in his own private Cuſtody, and to Convert them by his own authority to his own private uſe, but ought to bring them to ſome Publick Place in order to a Judication according to Law; yet they are to remain with the Captors till by them they are thus brought and ſubmitted to Publick Juſtice; by the authoritie whereof Commiſſion may iſſue for Landing or unlading the ſaid goods, for Inſpection, for Inventorying, and for Sale, either of ſuch part thereof as upon ſuch Inſpection ſhall appear to be Bona peritura, or of the whole in caſe the Court ſhall ſee Cauſe, which is to order payment out of the Proceed thereof to the party to whoſe uſe the Letters of Marque iſſued for and towards ſatisfaction of his debt and damages, after deduction of all dues, duties, neceſſary Coſts and Charges relating to the Seizure, either Judicially or Extra-judicially; And the ſaid debt and damages (with all Coſts and Charges) being fully ſatisfied, the Remainder or Overplus (if any, which ſeldome happens in ſuch caſes) is to be Reſtored to their Owners from whom they were taken, and the ſaid Letters of Marque thenceforward to ceaſe. Such Letters of Marque iſſue not without good and Sufficient Caution firſt given in Court for the due obſervance thereof according to Law, the tranſgreſſion whereof creates a forfeiture of ſuch Judicial Recognizance or Stipulation; and the Captor for the better management of a Judicial Proof, in order to a right Deciſion according to the merits of the caſe, is to produce part of the Seized Mariners to be Sworn and Examined according to Law, as alſo to Exhibite all the Ship-papers and Evidences found a Shipboard; and till Judication he may not break bulk of his own private authority, nor ſuffer any imbezilement of the Lading, nor Sell, Barter, or otherwiſe alter the property thereof, without Special Commiſſion from the Court for ſo doing.
In the Law there are certain Perſons and Things Exempt from being Lyable or Subject to Reprizals; They whoſe Perſons are Exempt, have alſo their goods Free. Reprizals granted againſt any Kingdome or State, are underſtood as againſt ſuch only who inhabit therein, and not againſt ſuch who though originally of that Countrey againſt which the Reprizals are, yet inhabit elſewhere, poſſibly in the ſame Kingdome whence the Letters of Marque iſſued; for he is not in this point reputed of that Kingdome, State, Province, or City wherein he doth not inhabite, albeit he were born therein; It is not the place of a mans Nativity but his Domicill, not of his Origination but of his Habitation, that ſubjects him to Reprizals; the Law doth not conſider ſo much where he was Borne, as where he Lives; not ſo much where he came into the world, as where he improves the world; provided he hath there Decenniated or inhabited Ten years, or leſs, in caſe he hath born Office there, or paid Scott and Lott, or removed his Family thither, or his Eſtate, or the greater part thereof, or is Naturalized a Denizon of that Countrey.
Reprizals may not be Exerciſed on Pilgrims, or ſuch as travel for Religion ſake, nor on Students, Scholars or their Books, or other Neceſſaries; Nor on Ambaſſadors or their Retinue; nor on Women or Children. Likewiſe Goods found with a Merchant of another place then that againſt which Reprizals are granted, albeit the Factor of ſuch Goods were of that place, are not ſubject to ſuch Reprizals; nor ought the preſumption of the Place (though ſtrong enough for Condemnation where proof of an innocent property failes) prevail againſt fuller Evidence. Eccleſiaſtical perſons are alſo by the Canon Law expreſly Exempt from Reprizals; So likewiſe ſuch perſons, as by Storm or Streſs of weather are driven into Port, have an Exemption from the Law of Reprizals according to the Jus Commune, what the Edict of any particular State in that caſe may doe, is not here determined; But a ſhip or Goods belonging to the Subjects of another Prince, againſt whom Reprizals are granted, coming into a Port, of that State, iſſuing ſuch Letters of Reprizal, not by ſtorm or ſtreſſe of Weather, but to avoid Confiſcation for ſome delict committed at home in their own Countrey, may be ſubject to Reprizals in Port.
This Right of Reprizals (which as ſome would have it, anſwers to the Saxon Withernam) is not only admiſſable in caſes of denyal, or protelation of Juſtice, as when Judgement may not be had within the time preſcribed by Law, but alſo when Judgement is given plainly againſt the Law, and no Remedy to be had againſt ſuch wrong Judgement, either in the ordinary courſe per viam Provocationis A Appellationis ad J…dicem ſuperiorem, nor in the extraordinary per viam ſupplicationis ad principem; underſtand thus when the matter in Controverſie is tam quod merita quam quod modum procedendi, not Doubtful, for in Doubtful matters the Preſumption is ever for the Judge or Court; But a wrong Judgement in matters not Doubtful muſt be redreſs'd one way or other, ſpecially if ſuch be given to the prejudice of Foraigners, over whom the Authority of a Judge, though in his own Juriſdiction, is not ſo exactly the ſame, as over his own Subjects; And although it be a Rule in Law, Res judicata pro veritate habetur, yet it is as true, that Judex male judicans pro injuria tenetur; nor doth a Judgement or a Definitive diminiſh the merits, though it may alter the Caſe; Therefore Paulus the Lawyer held, that a Debtor, that is a Debtor indeed, though Judicially abſolved, yet by nature remains a Debtor ſtill; and therefore when this happens to be a Foraigners Caſe, he may (if all other Legal Expedients fail) for redreſs have recourſe to the Jus Gentium, which holds conformity with the Law of Nature. Subjects indeed may not by force oppoſe the Execution even of an illegal Judgment, nor forcibly proſecute their denyed rights, and that by reaſon of the Energie of that Power and Authority which is over them, the Subjects obedience being in the Emphaſis of the Magiſtrates Authority: But yet Foraigners can fly to the Jus Gentium to Right themſelves by way of Compulſion, which they could not effect by any Legal proſecution, ſo long as their Right is reparable by Judgment according to Law, but infeazible by reaſon of the denegation or protelation of Juſtice, contrary to the regular proceedings of Law. It ſeems at leaſt Summum jus if not plus juſto, that the Goods of his Innocent Subjects that denyed Juſtice, ſhould be taken and ſeized for that …njuſtice, wherof they appear no more guilty then the original Complainants: The truth is, this is not introduced by the Jus Naturae, but yet being commonly received by Cuſtome and National practiſe, is now become qualified for an allowance or tolleration by the Jus Gentium; whether this were ſufficient for Neſtor to plunder the Elidenſes Hom. Iliad. 2.for taking away his Fathers horſes, or for others on the like peccadilloes in this Age, to Centuple their Loſſes on their Innocent Neighbours for their Princes omiſſions under colour of Letters of Marque, is eaſier to queſtion then proper to determine; But whether Chriſtian blood ſhould be ingaged in the quarrel which originully was but of Private Intereſt, would ſoon be decided where no Military man hath the Chair. By the Law of Nations all the Subjects of the Dominion doing wrong, whether Natives or Strangers making their aboad there, are within the reach of Reprizals; whereby 'tis evident, that Strangers not permanent there, nor under any of the aforeſaid qualifications, are excepted; for Reprizals being in their nature quaſi onus Publicum, are introduced for the ſatisfaction of Publick Debts, to which Strangers, that are meerly ſuch, are no way obliged; indeed to the Laws of the Land, where their preſent being is, they are ſubject, but yet are not Subjects. And whereas it is formerly ſaid, that Ambaſſadors are Exempt from Reprizals, as alſo their Retinue and Goods, underſtand it not of ſuch as are Commiſſionated to any Prince or State in enmity or actual hoſtility againſt that Prince who iſſues ſuch Letters of Marque. Laſtly, by the Law of Nations in matters of Reprizals, whatever is taken, immediately upon the Capture accrues ipſo facto to the Captor in point of Propetty, ſo far as the Original debt or damage with all incident coſts and charges doth amount unto, and the ſurplus to be reſtored; which Equity in this caſe the Venetians long ſince uſed to the ſhips they took on this accompt from the Genuiſes; But by the Civil Law, Monitions Gregor. lib. 9.or Citations after a ſeizure ought to iſſue, and the parties concerned are not to carve for themſelves, but ſubmit the whole matter to a Judicial Examination, in order to their Satisfaction, which ought to ballance the Damnum Emergens, but not to exceed by way of Supplement in reference to the Lucrum ceſſans; for the Law of Reprizals though otherwiſe rigid enough, yet Reſtitutio in integrum is its ultimate deſign; and as no man ought to be enriched by anothers Loſſe, ſo no man ought to gain by his own Loſſe, when it may not be repaired otherwiſe then by Remedies extraordinary, if not unlawful.
Having glanced at ſome general Heads of the Law of the Admiralty quaſi in tranſitu by way of Introduction (the leaſt whereof in its due Latitude requiring more Volumes then are Pages in this) and therein the Cuſtom paid, with other ordinary Port-charges uſual in ſuch caſes, It may now be free to ſayl from the Law to the Juriſdiction of the Admiralty, being the Port of Diſcharge in the Deſign of this Adventure; The Wind ſeems Fair, the Seas well purged of Rovers, and Nereus reinveſted with his Trident; The Enſurance therefore need run but Low, the Danger is not great now that we have Peace with all Our ſelves; yea, the Loſs is but ſmall though the Ship miſcarry, ſo the Cargo be preſerved, for that's of value, indeed a Jewell, without which the whole World would ſoon be Bankerupt; So that if it eſcape the private Arreſt of ſome Fained or Fictitious Action, there is no fear of a General Embarg.